Khamala (Suing as legal representative of the Estate of Khwale Okomoli Deceased) & another v Khwale & 11 others (Environment and Land Case E009 of 2023) [2026] KEELC 1152 (KLR) (25 February 2026) (Ruling) Neutral citation: [2026] KEELC 1152 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA ENVIRONMENT AND LAND CASE E009 OF 2023 A NYUKURI, J FEBRUARY 25, 2026 BETWEEN EMILY AUMA KHAMALA (SUING AS LEGAL REPRESENTATIVE OF THE ESTATE OF KHWALE OKOMOLI - DECEASED) ............................ 1ST PLAINTIFF GLADYS AMBIA GADI (SUING AS THE LEGAL REPRESENTATIVE OF GADI ANDAYI KHWALE) ............................................................................. 2ND PLAINTIFF AND DANIEL AMBONGO KHWALE & 11 OTHERS & 11 OTHERS & 11 OTHERS ................................................................................................... DEFENDANT RULING Introduction 1. On 4th February 2026, the parties in this matter sought for adoption of consent dated 26th November 2025, which prayer was allowed. The consent is in favour of the plaintifis. In the said consent, parties settled all the substantive matters between them, but asked the court to make a determination on who should pay costs of the suit. 2. Therefore, the court directed the plaintifis to file and serve written submissions on the question of costs in 7 days and upon service, the defendants to file and serve his submissions in 7 days in response thereto. On record are submissions filed by the plaintifis dated 10th February 2026. No submissions were filed by the defendants. Plaintifis’ submissions 3. Counsel for the plaintifi relied on the provisions of section 27 of the Civil Procedure Act and argued that costs are awarded at the court’s discretion and that the same follow the event. Counsel submitted https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1152/eng@2026-02-25 1
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that although this case involved family members, in which case the court may be inclined to deny the plaintifis costs, costs can still be awarded in matters involving family members. 4. They relied on the case of Roche v John Odhiambo Cyprian Laura Roche & Another C.A No. 177 of 2019 and argued that there were justifications for an award of costs to the plaintifis in this case because of the defendant’s conduct before and during litigation and that they were also guilty of intransigence as it took them too long to accept their mistake. 5. Counsel argued that this was a case of male siblings intending to disinherit their female siblings, a matter which is common and should be discouraged by an award of costs, because not awarding costs although intended for fostering peace in the family, may result in undesirable outcomes. That the plaintifis had spent money, time and efiort in this matter and ought to be awarded costs. Analysis and determination 6. The court has carefully considered this matter and submissions filed. The only issue for determination is whether costs should be awarded to the plaintifis. 7. Section 27 of the Civil Procedure Act provides that costs are awarded at the court’s discretion and that they should follow the event. In the instant case, the plaintifis sued the defendants vide a plaint dated 13th April 2023 seeking declaratory orders that the process that led to creation of new numbers from parcel No. E Wanga/ Isongo/766 was unlawful and cancellation of the said titles together with a permanent injunction to restrain the defendants from interfering with the suit property. 8. The matter was referred to mediation on 15th August 2023 but parties did not agree. The plaintifis informed court in May 2024 that they had been able to serve all the defendants with summons to enter appearance. On 3rd December 2024, parties were negotiating and ought time to record a consent which they did vide consent dated 26th November 2025. 9. It is therefore clear that this matter was settled before it was confirmed for hearing. Parties herein are siblings. This is not a matter for settling scores on the basis of gender. For those reasons, I order that each party shall bear its own costs. 10. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 25TH DAY OF FEBUARY, 2026 A. NYUKURI JUDGE In the presence of; Mr. Mutoka for the plaintifis 1st Defendant in person No appearance for the 2nd to 12th defendants Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1152/eng@2026-02-25 2
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